Hawke v. Maus
Decision Date | 31 May 1967 |
Docket Number | No. 1,No. 20363,20363,1 |
Citation | 226 N.E.2d 713,141 Ind.App. 126 |
Parties | Gerald S. HAWKE, Associated Truck Lines, Inc., Appellants, v. Hal B. MAUS, Appellee |
Court | Indiana Appellate Court |
Daniel J. Gamble, Ellis & Gamble, Kokomo, for appellants.
James A. Berkshire, Keith & Berkshire, Peru, for appellee.
Appellee brought this civil action against appellants for damages to real estate resulting from a collision of appellant's (Associated Truck Lines, Inc.) truck with the trees of appellee, and based upon the alleged trespass of appellants to the realty of appellee.
Appellee alleged that he was the owner and in possession of certain real estate on the southwest corner of the intersection of State Highway 16 and United States Highway 31 in Miami County, Indiana, and that there were growing on said real estate three Maple trees; that a 1963 tractor truck being driven by defendant-appellant's agent, Gerald S. Hawke, 'wrongfully came upon the Plaintiff's (appellee's) said real estate and collided with Plaintiff's said maple trees, completely destroying one maple tree and breaking limbs from the other two, tore up the grass and soil and otherwise injured and damaged said real estate.' Appellee alleged damages and demanded judgment in the sum of $1,000.
Appellants' demurrer for want of sufficient facts was overruled, after which appellants filed their answer in general denial. Trial was to the court without a jury, and judgment entered for appellee.
Appellants' motion for new trial specified that the decision of the court is not sustained by sufficient evidence and is contrary to law; and that the court erred in sustaining objections to certain questions propounded by appellants, and in overruling defendants-appellants' motion for finding at the close of plaintiff-appellee's evidence and in overruling defendants-appellants' motion for leave to amend their answer by filing a second paragraph.
The overruling of appellants' motion for new trial is the sole error assigned on appeal.
The question which objections were made and sustained would have elicited testimony to the effect that appellant-Associated's truck, while proceeding south on United States Highway 31 through the intersection with State Road 16, was struck by an automobile proceeding west on State Road 16, which automobile had run a red light, knocking the left front wheel loose and breaking the axle of appellant's truck, thus causing appellant-Hawke to lose control of the truck whereby it entered upon appellee's real estate. Such questions would have further elicited testimony that appellant-Hawke had no control over said truck after the impact, that he had no intention of entering appellee's real estate, nor was such entry his voluntary act.
No issue is here presented concerning ownership, agency or amount of damage since all were stipulated at the trial.
(Emphasis supplied.) Prosser, Torts, § 13, p. 63 (3d Ed. 1964).
(Emphasis supplied.) 1 Harper & James, The Law of Torts (1956), § 1.3, p. 10.
1 Restatement, Second Torts, § 166, Comment (b), p. 304 (1965).
It is true that in an action of trespass the intention of the defendant in making the entry or intrusion is immaterial. This proposition is strongly urged by appellee who cites two Indiana cases as authority. There are many decisions in Indiana setting forth this cardinal principle of trespass. However, a careful reading of these decisions will disclose that in each the entry was based upon a voluntary act of the defendant. This distinction is best described by the scholars.
1 Restatement, Second, Torts, § 164, Comment (a), p. 296 (1965).
'The intention which is required to make the actor liable under the rule stated in this Section is an intention to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled to enter.' 1 Restatement, Second, Torts, § 163, Comment (b), p. 294 (1965); 1 Restatement, Second, Torts, § 158, p. 277 (1965).
'Although it is not necessary that the trespasser intend to commit a trespass or even that he know that his act will constitute a trespass, it is required for trespass that there be an intentional act and an intent to do the very act which results in the trespass.' 87 C.J.S. Trespass § 5, p. 960; Edgarton v. H. P. Welch Co. (1947), 321 Mass. 603, 74 N.E.2d 674, 679--680, 174 A.L.R. 462; Wood v. United Air Lines, Inc. (1961), 32 Misc.2d 955, 223 N.Y.S.2d 692, 694; Phillips v. Sun Oil Co. (1954), 307 N.Y. 328, 121 N.E.2d 249, 250, 251; Socony-Vaccum Oil Co. v. Bailey (1952), 202 Misc. 364, 109 N.Y.S.2d 799, 801; United Electric Light Co. v. Deliso Constr. Co. (1943), 315 Mass. 313, 52 N.E.2d 553, 556.
Prosser, Torts, § 29, pp. 143--44 (3d Ed. 1964).
The question we are called upon to decide in this cause is whether the evidence in the record before us is admissible under the general denial and, if not, whether the trial court was in error in refusing to allow appellants to file their written second paragraph of answer at the close of plaintiff's (appellee's) case.
Rule 1--3, Rules of the Supreme Court of Indiana, 1964 Revision, provides, in pertinent part, that a (Emphasis supplied.)
Evidence of license or justification is admissible only by special answer. Chase v. Long, et al. (1873), 44 Ind. 427, 428; Johnson v. Cuddington and Others (1871), 35 Ind. 43; 1 Lowe's Revision, Works' Ind.Pract., § 15.64, p. 626.
* * *
Crum et al. v. Yundt (1895), 12 Ind.App. 308, 311, 40 N.E. 79, 80.
See also:
Interstate Public Service Co. v. Weiss, Admr. (1935), 208 Ind. 122, 127, 193 N.E. 226; Jeffersonville Water Supply Company v. Riter, et al. (1897), 146 Ind. 521, 526, 45 N.E. 697; National Live Stock Ins. Co. v. Owens (1916), 63 Ind.App. 70, 74, 113 N.E. 1024. 23 I.L.E., Pleading, § 58, p. 294.
'(E)very fact which the plaintiff, in the first instance, is under the necessity of proving to sustain his action, or every matter of fact which must or may be alleged in a good complaint, is the proper subject of denial; but that all other matters, that is to say, matters which do not to merely to controvert a fact, or the facts in the complaint, must be set up affirmatively in the answer.' National Live Stock Ins. Co. v. Owens, supra (1916), 63 Ind.App. 70, at page 74, 113 N.E. 1024, 1025.
In an action of trespass quare clausum fregit, it is necessary for the plaintiff to prove only that he was in possession of the land and that the defendant entered thereon without right, such proof entitling the plaintiff to nominal damages without proof of injury, and upon additional proof of injury to...
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